Opinion
CV-22-00356-PHX-DJH (ESW)
08-19-2022
Jeremy Douglass, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT JUDGE
Pending before the Court is Jeremy Douglass' (“Petitioner”) “Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus” (the “Petition”) (Doc. 1). For the reasons explained herein, the undersigned recommends that the Court dismiss the Petition (Doc. 1) as untimely.
I. BACKGROUND
In 2010, a jury sitting in the Superior Court of Arizona in and for Maricopa County convicted Petitioner of thirty counts of surreptitious recording, eight counts of sexual assault, seven counts of sexual abuse, ten counts of burglary in the third degree, and one count of attempted surreptitious recording. (Doc. 11-1 at 52-68). The trial court sentenced Petitioner to a total of 151.25 years in prison. (Id. at 193-202; Doc. 11-2 at 45). Petitioner filed a direct appeal. On June 30, 2011, the Arizona Court of Appeals affirmed Petitioner's convictions. (Doc. 11-2 at 44-49). The Arizona Court of Appeals, however, found that the trial court made a sentencing error and modified Petitioner's sentences to reflect a total of 150 years' imprisonment. (Id. at 49). Petitioner did not seek further review by the Arizona Supreme Court. (Id. at 51).
In August 2010, Petitioner filed a Notice of Post-Conviction Relief (“PCR”). (Doc. 11-2 at 54-56). Because Petitioner's direct appeal was still pending, the trial court dismissed the PCR proceeding with leave to re-file within thirty days following the Arizona Court of Appeals' issuance of its order and mandate. (Id. at 65).
In December 2011, Petitioner filed a letter that the trial court treated as a request for post-conviction relief. (Id. at 67, 69). The trial court summarily dismissed the PCR proceeding as untimely. (Id. at 69-70).
On April 23, 2012, Petitioner filed another PCR Notice. (Id. at 77-80). Although Petitioner acknowledged that the PCR Notice was untimely, he asserted that the untimeliness was not his fault because his appellate attorney did not send him the Arizona Court of Appeals' mandate on direct appeal. (Id. at 79, 81). The trial court allowed the matter to proceed and appointed PCR counsel. (Id. at 85-87). In a sealed Motion to Dismiss, Petitioner's PCR counsel requested that the trial court dismiss the proceeding without prejudice. (Id. at 113). In its April 2013 minute entry granting the Motion to Dismiss, the trial court stated that “[c]ounsel sets forth impediments that exist which prevent the pursuit at this time of defendant's Rule 32 rights.” (Id. at 118). The trial court gave Petitioner “leave to re-file for Rule 32 relief no later than 60 days of when counsel knows or should have known the circumstances preventing him from moving forward have been resolved.” (Id.).
Under the “prison mailbox rule,” a prisoner's state filings are deemed “filed” when they are delivered to prison officials for mailing. Anthony v. Cambra, 236 F.3d 568, 575 (9th Cir. 2000). Here, the clerk of court file-stamped the PCR Notice on May 1, 2012, but Petitioner dated it April 23, 2012. (Doc. 11-2 at 80). The PCR Notice does not indicate whether it was mailed to the trial court via the prison mailing system, and if so, the date it was given to prison staff for mailing. See Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003) (to receive benefit of prison mailbox rule, petitioner must be acting without assistance of counsel and must deliver filing to prison officials for forwarding to clerk of court). However, as it does not affect the outcome and Respondents have used April 23, 2012 as the PCR Notice's filing date, the undersigned has given Petitioner the benefit of the prison mailbox rule for purposes of calculating the timeliness of this proceeding.
On June 2, 2019, Petitioner's PCR counsel moved to reinstate the PCR proceeding. (Id. at 120-21). The trial court issued a minute entry “[Reinstating the Rule 32 proceeding,” but the trial court clarified that the prior PCR proceeding had been dismissed without prejudice and not stayed. (Id. at 123). Through counsel, Petitioner filed his PCR Petition on October 25, 2019. (Doc. 11-3 at 3-159; Doc. 11-4 at 3-16). The trial court found that Petitioner failed to present a colorable claim and summarily dismissed the proceeding. (Doc. 11-4 at 51). On September 24, 2020, the Arizona Court of Appeals affirmed the dismissal. (Id. at 94-95). The Arizona Supreme Court denied Petitioner's Petition for Review on March 3, 2021. (Id. at 127). The Arizona Court of Appeals issued its mandate on March 26, 2021. (Id. at 129).
On March 7, 2022, Petitioner, through counsel, filed the Petition (Doc. 1) seeking federal habeas relief. The Court screened the Petition and required Respondents to file an answer. (Doc. 4). Respondents filed a Limited Answer (Doc. 10) on July 11, 2022. Petitioner did not file a Reply. As discussed below, the undersigned finds that Respondents correctly argue that the Petition (Doc. 1) is untimely.
II. LEGAL STANDARDS
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat. 1214, a state prisoner must file his or her federal habeas petition within one year of the latest of:
A. The date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
B. The date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the petitioner was prevented from filing by the State action;
C. The date on which the right asserted was initially recognized by the United States Supreme Court, if that right
was newly recognized by the Court and made retroactively applicable to cases on collateral review; or
D. The date on which the factual predicate of the claim presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1); see also Hemmerle v. Schriro, 495 F.3d 1069, 1073-74 (9th Cir. 2007). The one-year limitations period, however, does not necessarily run for 365 consecutive days as it is subject to tolling. Under AEDPA's statutory tolling provision, the limitations period is tolled during the “time during which a properly filed application for State post-conviction relief or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2) (emphasis added); Roy v. Lampert, 465 F.3d 964, 968 (9th Cir. 2006) (limitations period is tolled while the state prisoner is exhausting his or her claims in state court and state post-conviction remedies are pending) (citation omitted).
AEDPA's statute of limitations is also subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010) (“Now, like all 11 Courts of Appeals that have considered the question, we hold that § 2244(d) is subject to equitable tolling in appropriate cases.”). Yet equitable tolling is applicable only “if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time.” Roy, 465 F.3d at 969 (citations omitted); Gibbs v. Legrand, 767 F.3d 879, 888 n.8 (9th Cir. 2014). A petitioner must show (i) that he or she has been pursuing his rights diligently and (ii) some extraordinary circumstances stood in his or her way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009); Roy, 465 F.3d at 969.
III. DISCUSSION
A. This Proceeding is Untimely
In this case, the relevant triggering event for purposes of AEDPA's statute of limitations is the date on which Petitioner's judgment became “final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).
The Arizona Court of Appeals affirmed Petitioner's convictions and sentences on June 30, 2011. (Doc. 11-2 at 44). Petitioner had thirty days from June 30, 2011 to petition the Arizona Supreme Court for review of the decision. Ariz. R. Crim. P. 31.19(a). Thirty days from June 30, 2011 is July 30, 2011. However, because July 30, 2011 was a Saturday, the deadline for filing a petition for review expired on Monday, August 1, 2011. See Ariz. R. Crim. P. 1.3(a) (providing that in computing time periods, the last day of the time period shall be included, “unless it is a Saturday, Sunday or legal holiday, in which case the period ends on the next day that is not a Saturday, Sunday, or legal holiday”). Petitioner did not petition the Arizona Supreme Court for review within this timeframe.
The Arizona Court of Appeals did not issue its mandate concerning Petitioner's direct appeal until September 30, 2011. (Doc. 11-2 at 51). This delay, however, did not impact the commencement of AEDPA's limitations period. In Hemmerle v. Schriro, 495 F.3d 1069, 1073-74 (9th Cir. 2007), the Ninth Circuit held that because “a mandate is not a decision terminating review,” an Arizona habeas petitioner's conviction was final on direct review upon the expiration of the time for seeking review of the Arizona Court of Appeals' decision in the Arizona Supreme Court and not on the date that the Arizona Court of Appeals issued its mandate. The undersigned finds that Petitioner's convictions became final on August 1, 2011. The one-year statute of limitations therefore began running on August 2, 2011. Consequently, unless statutory or equitable tolling applies, Petitioner's deadline to file a federal habeas petition expired on August 1, 2012, rendering this proceeding untimely. See Gonzalez v. Thaler, 132 S.Ct. 641, 654 (2012) (AEDPA's statute of limitations commences upon the expiration of the time for seeking review of petitioner's judgment in a state's highest court); Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001) (“Excluding the day on which Patterson's petition was denied by the Supreme Court, as required by Rule 6(a)'s ‘anniversary method,' the one-year grace period began to run on June 20, 1997 and expired one year later, on June 19, 1998 . . . .”).
1. Statutory Tolling
Statutory tolling does not apply to collateral review petitions that are not “properly filed.” Pace v. DiGuiglielmo, 544 U.S. 408 (2005); 28 U.S.C. § 2244(d)(2). A collateral review petition is “properly filed” when its delivery and acceptance are in compliance with state rules governing filings. Artuz v. Bennett, 531 U.S. 4, 8 (2000); Orpiada v. McDaniel, 750 F.3d 1086, 1089 (9th Cir. 2014) (court looked to Nevada state filing requirements in determining whether habeas petitioner's PCR petition was a “properly filed” application that is eligible for tolling). This includes compliance with filing deadlines. Hence, an untimely state collateral review petition is not “properly filed.” Pace, 544 U.S. at 417 (holding that “time limits, no matter their form, are ‘filing' conditions,” and that a state PCR petition is therefore not “properly filed” if it was rejected by the state court as untimely).
If the collateral review petition was “properly filed,” then the Court must determine the dates it was “pending.” In Arizona, a PCR petition becomes “pending” as soon as the notice of PCR is filed. Isley v. Ariz. Dep't of Corrections, 383 F.3d 1054, 1055-56 (9th Cir. 2004) (“The language and structure of the Arizona postconviction rules demonstrate that the proceedings begin with the filing of the Notice.”). It remains “pending” until it “has achieved final resolution through the State's post-conviction procedures.” Carey v. Saffold, 536 U.S. 214, 220 (2002). This includes “[t]he time between (1) a lower state court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law.” Evans v. Chavis, 546 U.S. 189, 191 (2006) (citing Carey, 536 U.S. 214).
Respondents correctly state that Petitioner's first PCR Notice, filed in August 2010, had no statutory tolling effect as it was filed and dismissed before Petitioner's convictions became final. (Doc. 11 at 22; Doc. 11-2 at 54-56, 65). Petitioner's second PCR Notice, filed in December 2011, also did not toll the limitations period as the trial court dismissed it as untimely. (Id. at 69).
The undersigned finds that the limitations “clock” ran from August 2, 2011 until April 23, 2012 when Petitioner filed his third PCR Notice that the trial court allowed to proceed. (Doc. 11-2 at 85-87). The length of time between August 2, 2011 and April 23, 2012 is 266 days. After subtracting 266 days from the one-year (365 days) limitations period, 99 days remained on the limitations “clock” in which to file a federal habeas petition.
On April 2, 2013, Petitioner's PCR proceeding concluded when the trial court granted Petitioner's motion to dismiss. (Doc. 11-2 at 116). The limitations period thus recommenced on April 3, 2013. As there were 99 days remaining on the limitations “clock,” Petitioner had until July 10, 2013 to file his federal habeas petition.
Respondents correctly argue (Doc. 11 at 23) that Petitioner's fourth PCR proceeding initiated in 2019 did not restart the limitations period. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001) (once the statute of limitations has run, subsequent collateral review petitions do not “restart” the clock). Accordingly, this proceeding initiated on March 7, 2022 is untimely unless equitable tolling applies.
2. Equitable Tolling is Unavailable
Regarding equitable tolling, Petitioner has the burden to show that extraordinary circumstances beyond Petitioner's control made it impossible for him to file a timely federal petition. Roy, 465 F.3d at 969; Gibbs, 767 F.3d at 888 n.8. A petitioner's pro se status, on its own, is not enough to warrant equitable tolling. See, e.g., Johnson v. United States, 544 U.S. 295, 311 (2005). In addition, a petitioner's miscalculation of when the limitations period expired does not constitute an “extraordinary circumstance” warranting equitable tolling. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); see also Alexander v. Schriro, 312 Fed.Appx. 972, 976 (9th Cir. 2009) (“Ultimately [the petitioner] made an incorrect interpretation of the statute and miscalculated the limitations period. This does not amount to an ‘extraordinary circumstance' warranting equitable tolling.”).
Petitioner is represented by counsel. Petitioner has not filed a Reply in response to Respondents' assertion that no grounds for equitable tolling exist in this matter. The undersigned finds that Petitioner has failed to show the existence of “extraordinary circumstances” that were the proximate cause of the untimely filing of this proceeding. See Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (for equitable tolling to apply, a “prisoner must show that the ‘extraordinary circumstances' were the cause of his untimeliness”). Equitable tolling therefore is unavailable.
It is noted that the record reflects that during his third PCR proceeding, filed on April 23, 2012, Petitioner asserted that an impediment existed to seeking post-conviction relief and that the matter should be dismissed without prejudice to re-filing once that impediment was removed. On June 2, 2019, Petitioner moved to re-initiate his PCR proceeding, which the trial court granted. The Court need not determine whether Petitioner is entitled to equitable tolling from April 23, 2012 through the conclusion of Petitioner's fourth PCR proceeding filed in 2019 as this proceeding would remain untimely. As mentioned, the Arizona Court of Appeals affirmed the trial court's dismissal of Petitioner's fourth PCR proceeding on September 24, 2020. (Doc. 11-4 at 94-95). The Arizona Supreme Court denied Petitioner's Petition for Review on March 3, 2021. (Id. at 127). If tolled, the limitations period would have recommenced on March 4, 2021. To reiterate, 266 days had already run on the limitations “clock” when Petitioner filed his third PCR Notice on April 23, 2012. There were 99 days remaining on the limitations “clock” when the Arizona Supreme Court denied review. Petitioner thus had until June 10, 2021 to file his federal habeas petition. Therefore, the March 7, 2022 Petition would be untimely by almost nine months even if the Petitioner was entitled to the above equitable tolling.
B. The Actual Innocence/ Schlup Gateway Does Not Apply to Excuse the Untimeliness of the Petition
In McQuiggin v. Perkins, 133 S.Ct. 1924, 1931-34 (2013), the Supreme Court announced an equitable exception to AEDPA's statute of limitations. The Court held that the “actual innocence gateway” to federal habeas review that was applied to procedural bars in Schlup v. Delo, 513 U.S. 298, 327 (1995) and House v. Bell, 547 U.S. 518 (2006) extends to petitions that are time-barred under AEDPA. The “actual innocence gateway” is also referred to as the “Schlup gateway” or the “miscarriage of justice exception.”
Under Schlup, a petitioner seeking federal habeas review under the miscarriage of justice exception must establish his or her factual innocence of the crime and not mere legal insufficiency. See Bousley v. United States, 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). “To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.” Schlup, 513 U.S. at 324; see also Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011); McQuiggin, 133 S.Ct. at 1927 (explaining the significance of an “[u]nexplained delay in presenting new evidence”). A petitioner “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” McQuiggin, 133 S.Ct. at 1935 (quoting Schlup, 513 U.S. at 327). Because of “the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected.” Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (citing Calderon v. Thomas, 523 U.S. 538, 559 (1998)).
To the extent Petitioner asserts the actual innocence/Schlup gateway, Petitioner has not presented any new reliable evidence establishing that he is factually innocent of his convictions. Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (“In order to present otherwise time-barred claims to a federal habeas court under Schlup, a petitioner must produce sufficient proof of his actual innocence to bring him “within the ‘narrow class of cases . . . implicating a fundamental miscarriage of justice.'”) (citations omitted); Shumway, 223 F.3d at 990 (“[A] claim of actual innocence must be based on reliable evidence not presented at trial.”); Larsen v. Soto, 742 F.3d 1083, 1096 (9th Cir. 2013) (“[W]e have denied access to the Schlup gateway where a petitioner's evidence of innocence was merely cumulative or speculative or was insufficient to overcome otherwise convincing proof of guilt.”). Because Petitioner has failed to satisfy his burden of producing “new reliable evidence” of his actual innocence, the undersigned recommends that the Court find that Petitioner cannot pass through the actual innocence/Schlup gateway to excuse the untimeliness of this federal habeas proceeding. See Smith v. Hall, 466 Fed.Appx. 608, 609 (9th Cir. 2012) (explaining that to pass through the Schlup gateway, a petitioner must first satisfy the “threshold requirement of coming forward with ‘new reliable evidence'”); Griffin v. Johnson, 350 F.3d 956, 961 (9th Cir. 2003) (“To meet [the Schlup gateway standard], [petitioner] must first furnish ‘new reliable evidence . . . that was not presented at trial.'”).
IV. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Petition (Doc. 1) be DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied because dismissal of the Petition is justified by a plain procedural bar.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.